Self-Representation

The family court system has seen a terrific increase in the number of self-represented litigants (self-reps, or SRLs) over the past few years. But what does it mean to be a self-rep?  Judges and lawyers, as well as the system itself, are all struggling to understand who how to better accommodate self-reps in a system built upon the expectation of both parties having lawyers to act for them.

A recent review of cases prepared by Loom Analytics for The National Self-represented Litigants Project revealed some disturbing figures. Over a period of 4 years and 3 months ending April 6, 2016, in Ontario Superior Court cases where there was one self-rep and one represented client, the self-rep won only 14% of the time and lost 73% of the time. (The remainder resulted in no orders or split orders.) While there are many explanations for this, it’s clear that a person without any legal help or assistance is facing an uneven playing field.

Here are some studies and findings showing what self-reps, judges, and lawyers think about people who are representing themselves in family court.

Self-rep Studies

The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants

Dr. Julie Macfarlane from the University of Windsor conducted an in-depth study of self-represented litigants. It looks at self-reps’ frustrations, what their needs are, and how the family law system can help them. This report does more than any other to understand who self-reps are and what they need. It also looks at the community at large and the family law profession to see what could be done to help them.

Dr. Macfarlane continues to support self-reps through the National Self-Represented Litigants Project (NSRLP) website. It is continually updated with new blog posts and resources.

The Rise of Self-Representation in Canada’s Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers & Litigants

Written by academics Rachel Birnbaum, Nicholas Bala, and Lorne Bertrand, this article reports on the results from a number of studies and looks at self-reps the perceptions of self-reps themselves, lawyers, and judges. The article states that a “lack of financial resources is the most significant reason for self-representation, but a significant number of the self-represented do not believe that they will have worse outcomes without a lawyer. Family law lawyers and judges report significant concerns about lack of representation, including fewer settlements and a slower process, with corresponding increased expense for a represented party.”

Going it Alone (pg. 12 & 14)

Written by Nicholas Bala and John-Paul Boyd, in The Lawyers Weekly, September 26, 2014. It says, “Litigants without counsel are often caught in a downward spiral. They generally have unrealistically high expectations for the outcome of their family law cases, which reduces the likelihood that their cases will be resolved without trial. When they do proceed to trial, their lack of knowledge of the governing legislation, the rules of evidence, the rules of court and court processes frequently causes additional problems and doubtless increases the length of trials and the number of adjournments.”

Family Reform Community Collaboration Report

Ryerson University Legal Innovation Zone’s report, published in February 2016, considered how to create a system for separating families to find a faster, more affordable, and more supportive approach to resolve matters. The report points out that between 50-80% of those in family court are without lawyers. With around 80,000 new cases each year and each case taking around 2 years to go through the system, this means there are roughly between 160,000 – 256,000 self-reps in Ontario’s family court system at any given time.

 

The Findings

The studies above provide significant insights into the experiences of self-reps. Both in terms of how family law self-reps see themselves and the observations of judges and lawyers.

How self-reps see themselves

Self-reps who anticipated that the wealth of information on the Internet would help them better represent themselves generally ended up disillusioned and disappointed. They’re eager to find better sources of legal information – something designed for non-lawyers.

They’re looking for information on practical tasks like filing or serving, advice on negotiation or a strategy for talking to the other side, presentation techniques, or even legal procedures. However, they‘re often directed to other sites (sometimes with broken links) with inconsistent information. Self-reps have a hard time figuring out which sources are “legitimate”. On top of that, many resources are difficult to read and use jargon or unexplained legal terms.

Self-reps want one-on-one assistance and coaching to help them through the process:

  • How to deal with judges and lawyers
  • How to discuss their case with a view to resolving parts or all of it without requiring a judge
  • What facts to emphasize
  • How to present their case in the most effective way
  • How to be persuasive

Many self-reps had started out with a family law lawyer. They left their lawyers because of cost, but also because they felt their lawyer wasn’t listening to them, taking instructions well, or wasn’t knowledgeable about the particular legal issues the self-rep faced. Self-reps who had previously had a lawyer said things like their lawyer was “doing nothing” or that no progress was being made.

Self-reps were seeking fixed rate (or “unbundled”) services, but had difficulty finding lawyers who offered them. They’re looking for support with documents and coaching to give them something to check their own strategies. They aren’t saying that they don’t want lawyers to help them, but that the way lawyers are currently offering their services doesn’t fit within their budget. They felt their lawyer was disinterested in settlement possibilities or mediation. They felt they weren’t being listened to or consulted in the decision-making. Self-reps also felt that the lawyers weren’t truly accountable to the public and that efforts to question their competence were often not taken seriously by the courts or regulators.

Many self-reps said they would prefer to have legal counsel if this was:

  • affordable
  • offered tangible value for money – such as the expertise they lacked and the prospect of a better outcome, and
  • allowed them to remain in control of major decisions about the direction and conclusion of their case.

Many self-reps were dissatisfied with the legal advice services available at the courthouses, which gave them only a limited time with a lawyer and left them more confused than they were before.

Many self-reps begin with a sense of confidence, but the confidence disappears when faced with the reality of the court process, often triggered by difficulties completing application forms and understanding the service process.

How judges and lawyers see self-reps

Unfortunately, lawyers and judges don’t generally see positive outcomes for people who represent themselves in family court. They believe self-reps have unrealistically high expectations for the outcome of their cases, which results in worse outcomes than what could have been achieved if they had a lawyer.

The perception is that self-reps do worse than represented litigants, particularly when it comes to family law issues relating to money.

Challenges usually arise because of the self-rep’s unfamiliarity with the law of evidence, the legislation applicable to their case, the rules of court, and hearing and trial processes.

Lawyers find that settlement before trial is less or much less likely when one party is self-represented, and that settlement is less or much less likely when both parties are self-represented. This low rate of settlement may be attributable to unrepresented parties’ assumptions about how their cases will turn out.

Finally, while self-reps are sometimes frustrated with lawyers when their case doesn’t progress, the reality is that family law cases involving self-reps tend to take longer to resolve than cases in which all parties are represented.

Check out Self-reps By the Numbers for some interesting and alarming statistics.